this blog post is for promotional use only

The Electronic Frontier Foundation’s Fred Von Lohmann (whom I adore, p.s.) explains why EFF is involved in a new suit against Universal Music Group involving first sale rights:

The “first sale” doctrine expresses one of the most important limitations on the reach of copyright law. The idea, set out in Section 109 of the Copyright Act, is simple: once you’ve acquired a lawfully-made CD or book or DVD, you can lend, sell, or give it away without having to get permission from the copyright owner. In simpler terms, “you bought it, you own it” (and because first sale also applies to gifts, “they gave it to you, you own it” is also true).

UMG got litigious first here, suing an eBay music store for selling used cds. Because the cds were promo cds (the kind given for free to radio stations, etc.), they were marked “promotional use only,” which UMG says negates first sale rights.

“If UMG is right, then copyright owners of all kinds can strip away our first sale rights by putting these kinds of “label licenses” on their wares,” Fred writes. “Next thing you know, CDs, books, DVDs, and video games could be festooned with “notices” that erode a customer’s first sale, fair use, and other rights.”

Sure that’s a worst-case-scenario, but spouting worst case scenarios is all part of Von Lohman and the EFF folks’ game, which is to try and show people why legal issues that can seem wonky and dry actually matter in the real world.

There is no reason why by convention or law a copyright holder should be able to scribble some non-sense onto a CD, thus turning it into some super special contract that doesn’t require an actual signature or verbal consent to make binding.